Lessig leads Net Neut charge in Stanford inquisition

Left Coast Comcast Hearing "The most outrageous thing about this whole story," Larry Lessig told FCC boss Kevin Martin, "is that we can't get the facts straight."

And we agree with him.

When the US Federal Communications Commission parachuted into Silicon Valley last week, pulling together another public hearing on the network management practices of American ISPs, Lessig was on the guest list, and as you might expect, he came down hard on Comcast, the big-name cable provider that's made a habit of throttling BitTorrent and other peer-to-peer traffic. The Free Culture-loving Stanford law professor is on the board at Free Press, one of the organizations that petitioned the FCC to investigate Comcast's behavior.

In a prepared speech, Lessig urged the commission to lay down hard and fast net neutrality rules, arguing this is the only way to ensure that Americans - including consumers, developers, and investors - know what they're getting from the country's ISPs.

"We are here facing these problems because of a failure in FCC policy," he said. "The FCC has failed to make it absolutely clear that the network owners that are building the internet need to build it neutrally. It is this failure of clear policy that makes us wonder why exactly Comcast is doing what its doing at the network level."

This sort of talk was well received by the liberal-minded crowd that turned up at the hearing - held on Stanford's campus - but the Comcast controversy goes well beyond the usual debate over net neutrality. The truth is that we still don't know what Comcast is doing at the network level - as Lessig later pointed out when questioned by Kevin Martin.

"The least we should be able to do is have an agency of the United States government get the truth about what's actually happening here," Lessig told Martin. "The most important thing you can do - right away - is address the question of 'What happened?'"

Or rather, What's happening? Though Comcast has said it will stop throttling traffic by the end of the year, that's still a ways away.

Delay tactics

As Martin told the Stanford hearing, Comcast continues to say that it's merely delaying traffic - not blocking it. The company said it was delaying when the FCC held its first network management hearing in late February. And it said so again with a March 28 letter to Martin and his fellow commissioners.

But tests have shown that Comcast is preventing users from "seeding" peer-to-peer uploads. In certain cases, when one machine downloads a file and attempts to upload that file to another machine, Comcast uses a forged "reset flag" to breaks this peer-to-peer connection.

"It's very clear that this is blocking," said Jon Peha, the associate director of the Center for Wireless and Broadband Networking and a professor in the department of electrical and computer engineering at Carnegie Mellon University. "When you delay something, it does eventually happen. If you intervene in some way that the thing never happens unless someone takes another step, that is not delaying.

"If you block my phone call and I get a busy signal, I have to dial again if I want to make the call later. That's not delaying. That's blocking. And that's what's happening here, when they're sending tcp reset packets. They are terminating the call. They end it. Unless you call again, it won't happen."

Comcast also says that it only manages P2P traffic during periods of network congestion. But Robb Topolski - the independent researcher who first noticed Comcast's throttling - told Martin and his fellow commissioners that the ISP throttles round-the-clock.

"I've done testing at all hours of the day," he said. "One or two days before the [FCC's February hearing], at 1:45 in morning, my packets were being blocked on 75 per cent of the connections - 75 per cent of the connections that were established were being torn down by reset packets.

"I can't imagine 1:45 in the morning being a time of internet congestion. Using ping, I was able to establish that in my neighborhood anyway, the time of congestion tends to be weekdays between 3:30 and 7 when the kids come home from school."

Like the other big-name broadband ISPs, Comcast declined an invitation to attend the FCC's Stanford hearing. But George Ou - an independent consultant and former network engineer who has discussed the controversy in the pages of his now defunct ZDNet blog - was on hand to defend the company.

Like Lessig, Ou attempted to define the controversy in terms of net neutrality. Of course, he came at things from the other side, arguing that P2P file sharers put an undo strain on the network and thus have no right to complain about someone throttling their traffic. "The P2P bandwidth hogs yell 'discrimination' and persuade activists to portray them as victims of evil corporations who are being deprived of their civil rights," he said.

"If anyone dares to throttle their overconsumption in any way, activist groups demand trillion-dollar FCC fines and immediate enjoinments before the facts are even in. But there's nothing neutral or fair about what these groups are asking for and they're not the protectors of consumer rights they portray themselves to be."

But again, this misses the larger issue. If Comcast's network management practices are reasonable, why didn't it disclose them from the start? Better yet, why won't it disclose them now?

Later in the hearing, the debate turned to Comcast's advertised upload and download speed, with some complaining that these speeds are well above what users actually experience. Then George Ou pointed out that Comcast advertises peak numbers not minimum numbers.

"It's a misconception that when an internet provider advertises 3Mbps, you're guaranteed 3Mbps," he said.

"Then why don't they advertise the average number?" asked Lessig.

Yes, the Stanford crowd cheered even louder. But this drew a positive response from Ou as well. "I'm all for transparency," he said.